Sunday, November 30, 2008

Stanford Law School researcher Mark Lemley said in a 2005 study entitled Patenting Nanotechnology that “…patents will cast a larger shadow over nanotech than they have over any other modern science at a comparable stage of development.”

In "Patenting Nanotechnology" [Stanford Law Review], Lemley wrote that Gary Boone invented the integrated cirucuit, which removed the real integrated circuit story from his consideration. Lemley separately thought the transistor inventors contemplated only hearing aid applications, limiting his analysis of the story of patents and the transistor.

The foolishness originated with Wagdy Sawahel at Intellectual Property Watch.

The 30 Nov 08 episode of "The Unit"had an unflattering portrayal of an academic, who directed the members to a non-existent anthrax factory and otherwise omitted certain details. Sounded just like certain IP academics.

EETimes reports: Fairchild Semiconductor is suing Infineon Technologies AG in the U.S. District Courts of Maine and Delaware, claiming some of the German group's CoolMOS and OptiMOS power management devices, as well as its Infineon IGBT and CanPak parts, infringe one or more of eight Fairchild patents.

Long, long ago, Fairchild and Texas Instruments were involved in the fundamental lawsuit over patent rights to the integrated circuit.

There is indication that the lawsuits arose after a breakdown in licensing talks. Reuters reported: Infineon and Fairchild have engaged in cross-licence negotiations, but the talks recently soured, ultimately leading to the lawsuit, according to Fairchild.

According to a study submitted by Korean scholar Dr. Samuel Kim to Columbia University last summer, 44 percent of the 1.5 and second-generation Korean Americans who entered high-level U.S. universities dropped out of school halfway through.

Meanwhile, there is another predicament into which Korean students are likely to fall - plagiarism.

“Many Korean students still write cut-and-paste essays, which is considered to be plagiarism here in the U.S.,” said Dr. Kim.

Used to more lenient Korean standards when it comes to copying the work of others, many Korean students find it hard to get used to strict Western academic standards, under which copying just a few sentences without identifying the source is considered plagiarism.

This reflection of US academic practice is consistent with the rough handling of Allison Routman. However, is is consistent with Joe Biden at Syracuse or Glenn Poshard at SIU? One can also think about the KY Cha matter at Fertility and Sterility.

In health-conscious, sports-oriented Boulder, Colorado Atlas Sports Genetics is playing into the obsessions of parents by offering a $149 test that aims to predict a child's natural athletic strengths. The process is simple. Swab inside the child's cheek and along the gums to collect DNA and return it to a lab for analysis of ACTN3, one gene among more than 20,000 in the human genome.

Also: Some experts say ACTN3 testing in its infancy and virtually useless. Dr. Theodore Friedmann, the director of the University of California-San Diego Medical Center's interdepartmental gene therapy program, called it "an opportunity to sell new versions of snake oil."

"This may or may not be quite that venal, but I would like to see a lot more research done before it is offered to the general public," he said. "I don't deny that these genes have a role in athletic success, but it's not that black and white."

Dr. Stephen Roth, director of the functional genomics laboratory at the University of Maryland's School of Public Health who has studied ACTN3, said he thought the test would become popular. But he had reservations.

IPBiz notes that the most likely near-term benefit of research sponsored by California's CIRM will be genetic testing. While CIRM tries to "spin" this, the failure to come close to reproducing Hwang Woo Suk's human SCNT and the failure to come close on therapies remains. Klein of CIRM said:

"CIRM appreciates the tradeoffs involved in awarding funding for therapy development versus basic research and the impact of each on achieving CIRM’s mission. Fortunately, CIRM has not been presented with a binary choice. CIRM has the capacity to fund both basic research and therapy development. As CIRM’s 2006 and 2008 scientific strategic plans make clear, CIRM recognizes that it must fund both basic research and preclinical and clinical research in order to meet the goals established by Proposition 71. Indeed, CIRM’s funding priority is to create a “scientific pipeline to cures” stretching from early discoveries to clinical applications. The draft 2008 update to the strategic plan thus calls for dramatic increases beyond the 2006 plan in the types of research targeted to elicit therapeutic applications, and it envisions significantly more investment in focused “disease team” awards, translational research awards, and linkages to industry—the final conduit for getting research advances to the patient."

The Chicago Tribune re-reported a story from the Freeport Standard about LeBaron & Miller Interiors taking over a store once occupied by E & W Clothing House, which had a a "cash railway" or "cash carrier system." In this system, customers paid the clerk for their merchandise at the counter, after which the clerk grasped a small metal box or tube from a wire over his head, deposited the ticket and cash inside, pulled a cord that sent it sailing up a wire to a cashier on a balcony. The device bears the name the "Baldwin Flyer."

The story notes inventor James Baldwin took out a patent on a flyer for a wire system able to travel vertically in 1931. An illustration is labeled US patent No. 1,784,776 of 1930. Notwithstanding, the Indianapolis installation predates that patent.

Bob Park roasts cold fusion, again

In his Nov. 28 post, Bob Park wrote:

It's been almost 20 years since the March 23, 1989 announcement that cold fusion had been discovered by two chemists at the University of Utah. By June, cold fusion was an object of ridicule. A small band of embattled defenders retreated to holding annual conferences of like-minded scientists to which skeptics were not welcome. The story now seems to be entering a new chapter. Believers have begun showing a willingness to confront skeptics, submitting papers to open meetings of major scientific societies. They no longer use the term "cold fusion," preferring the less contentious "low-energy nuclear reactions" (LENR) to describe their field; LENR more accurately describes what, if anything, is going on. However, the use of LENR has been undone by referring to "excess heat" as the Fleischmann-Pons effect. This only serves as a reminder of the outrageous conduct of the university administration and the incredibly sloppy research on which the claim was based. This year, there is great excitement over the work of Yoshiaki Arata, a respected professor at Osaka University. In May Arata demonstrated the production of excess heat to an audience of 80, but there have been many such claims over the years and until it is replicated by someone outside the LENR community and a plausible explanation is advanced, it will change few minds.

A post at freerepublic made reference to the USPTO: El Baradei and his ilk guard the US Patent Office against even the remote possibility of this moving forward., presumably an allusion to the International Atomic Energy Commission's Mohammad El-Baradei. One doubts that anyone is "guarding" the USPTO.

***UPDATE.

In terms of the second comment, Exxon Corporate Researchers were hard at work studying the effect at the time, and LBE's potentiostat was commandeered. LBE does not recall a write-up from the Exxon work as detailed as the Amoco work. Note also one of LBE's advisors was Robert A. Huggins and LBE did visit the Stanford lab circa 1990.

--> the terrorists captured the Indian fishing trawler bearing the name Kuber, and utilized it to get to Mumbai.

--> the Indian coast guard actually intercepted the (captured) Kuber: On November 23, after reaching Porbandar in the Indian state of Gujarat, 310 nautical miles from Mumbai, the insurgents were intercepted by two coastguard officers. The group hoisted a white flag and allowed the two men to board their boat. According to Kasab, one of the militants then attacked one of the officers, slitting his throat and throwing him overboard. The other man was forced to help the group reach their destination before being executed as the vessel drew near to Mumbai.

Either one of these events should have set off bells and whistles.

***The Statesman noted the terrorists were given local help in India: Kasab, who is being kept in an undisclosed place, has reportedly revealed that the ten terrorists who landed at the Gateway of India were extended logistic and other “active support” at three targets: the Taj Mahal Hotel, the Oberoi-Trident and Nariman House. He is understood to have given the names of five local contacts who acted as accomplices in the terror attacks. (...) These “locals” might have helped them with fake I-cards and other facilities. Investigators, who surmise from documents recovered that at least some of the terrorists had visited Mumbai in the recent past, posing as “students” from Mauritius, are yet to confirm whether these local accomplices helped facilitate these visits.Satellite phone conversations with Muzzamil alias Yusuf, in charge of Lashkar-e-Tayyaba's India operations, have been confirmed. The terrorists were trained in boat and ship movements at Pakistan’s Mangla Dam reservoir.

A report at SIFY titled Arrested terrorist says the gang hoped to get away did NOT mention the coast guard matter. SIFY did note: According to Ajmal, the Lashkar-e-Taiba had trained all terrorists in marine warfare. According to one report, they received training in a special course called Daura-e-Shifa which converts a routine terror strike and into a specialized commando raid. According to a Times of India report, Ajmal has revealed the name of his fellow jihadis, all Pakistani citizens, as Abu Ali, Fahad, Omar, Shoaib, Umer, Abu Akasha, Ismail, Abdul Rahman (Bara) and Abdul Rahman (Chhota). (...) The group received arms and ammunition on board a large Pakistani vessel which picked them up the following day.[Nov. 22. They hijacked the Kuber on Nov. 23 and reached Mumbai on Nov. 26]

Kasav, during interrogation, led police officials to Al Kuber, the boat terrorists used to enter Mumbai. He had specifically said that body of the Sarang -- the captain of the boat -- would be found in the engine room along with a GPS and a satellite phone. The information that was passed on to Coast Guards was found to be precise.

He also told investigators that Mumbai Police's quick reaction and intense retaliation had surprised him because of which he was forced to move out of Chattrapati Shivaji Terminus (CST) with his accomplice.

Kasav was sent with an instruction to take over CST along with his accomplice Ismail Khan, whose identity is still to be verified, and to hold fort for as much time as possible.

Once out of the station, Kasav depended solely on the digital maps, which the terror outfit had provided him to find his way to Cama hospital, Metro Cinema, Vidhan Bhavan, and later to Girgaum Chowpatty -- where his accomplice was gunned down and he was arrested.

The blog Great Domain Name - An Invention and Intellectual Property Blog has a recent post invoking "patent troll tracker":

A report co-authored by Ron Laurie titled “A Summary of Established & Emerging Business Models” (courtesy of Patent Troll Tracker) was instrumental to my understanding of these business models. This is also recommended reading for those of you that tuck yourself in bed reading about IP law.

The allusion to "patent troll tracker" is a reference to the link: http://trolltracker.googlepages.com/Established2007.pdf. [cited for example by Patently-O on 14 Feb. 08. Other links include http://trolltracker.googlepages.com/Saffran_Final_Judgment.pdf; http://trolltracker.googlepages.com/7321783.pdf. See also http://www.randomcube.co.uk/track-a1fef83.html]

The Laurie article includes the text:

Given that IP feudal lords no longer rule, one can say that we are now in an era of “IP for the masses,” where the IP marketplace operates according to the Golden Rule -- those with the gold (i.e., IP rights) can now make the rules.

Necessarily, the evolving IP marketplace has been accompanied by a change in the players within the marketplace. Traditionally, in the “feudal lords” period, such players were overwhelmingly patent lawyers and large patent owners (with a few smaller or individual players making the occasional appearance and splash). Today, however, the cast of players has grown. That is, this new era is characterized by the rise of “market-maker” intermediaries who seek to make IP a liquid asset class and, of course, profit from it.

Who are these new players? Well, these new players are generally referred to as “IP intermediaries” because they are neither the IP creators nor the IP “consumers,” e.g. licensees and purchasers. These intermediary business models, however, attempt to perform one or more services or offer one or more products that connect the IP creators and the IP consumers.

Query: Chester Carlson as feudal lord? Orville Wright as feudal lord?

The Laurie piece concluded:

It is clear that the players, and their attitudes, that dominated the “feudal period” will no longer carry the day. The newly-established and emerging IP business models (and the players exercising such models) are not going away. That is, neither U.S. Supreme Court decisions such as eBay, nor any of the so-called “anti-patent troll” legislative proposals floating through Congress, will make such intermediary entities such as PLECs, IP outsourcing companies, licensing agents, merchant banks, exchange operators and the like go away. With as much as three-quarters of the value of publicly traded companies in America coming from intangible assets, and global IP licensing revenue now being measured in the hundreds of billions of dollars, there is simply too much economic justification for such entities to exist. In fact, new players implementing the IP business models described herein will come into existence. And, new IP business models will also come into existence. Why? Quite simply, the business of IP (i.e., IP marketplace) itself is not immune to innovation!

I did a fair amount of research today and was unable to track down a comparison of Ocean Tomo to alternative solutions, but I did find an interesting presentation from a competitor in the IP Investment/Merchant Bank space -- Inflexion Point. Art Monk and Ron Laurie of Inflexion Point Analytics, LLC made a presentation titled, "Business Opportunity Alternatives to Assertion-Based Patent Monetization" at the November 6, 2007 IP Society Seminar.

*****

A different post on greatdomainname mentions twitter:

In fact, I did something even more “unprofessional” this week - I joined Twitter. As a result of such “unprofessional” behavior, Dennis Crouch of PatentlyO found my blog and posted a link to Great Domain Name in a list of blogs that were new (to him at least).

So when I got an email from Jeff* this week with a link that explains how a blog can save your career during the economic downturn…perhaps he was right all along. Dammit.

Text on the linked post included:

Your blog is your resume. It's that simple.

10. If starting a blog is too much work short term, you can contribute to or comment on the blog or podcast of the person (and thus, company) you'd like to be working for next.

Also: Blogging = market research. In my experience, blogging keeps me smart. and In the game of Cubicle Survivor, there's no prize for second place.

Of course, returning to the "patent troll tracker," the blog proved to be the/a reason for not staying with the job, although the blog did generate a lot of "market research." Incidentally, the "patent attorney roster" places troll tracker Rick Frenkel at Wilson Sonsini Goodrich & Rosati on Page Mill Road, consistent with an August 4 blog post:

Former Patent Troll Tracker blogger Rick Frenkel has left Cisco Systems and moved to Wilson Sonsini Goodrich & Rosati, a top Silicon Valley law firm, where he is of counsel. Today is his first day at the firm.

"We were impressed with his breadth and depth of experience," said Michael Barclay, an IP litigation partner at Wilson Sonsini and a PTT reader, natch. "Rick has developed a lot of knowledge and insights about patent trolls that will be helpful to our clients who have to deal with them."

Barclay described the PTT defamation litigation as "a private matter" that had no influence on the hiring decision. Frenkel's bio is up on the Wilson Sonsini website. A Cisco Systems spokesman said the company doesn't generally comment on personnel matters, adding only: "Rick voluntarily left Cisco to pursue an opportunity with a prestigious Silicon Valley law firm. We wish him well in his new endeavors."

{Barclay incidentally got a physics undergrad degree at Berkeley and a JD from the UCLA School of Law. He wrote an article on the Patent Local Rules of ND Cal in 2008. Frenkel has an undergrad degree from UMichigan and has a law degree from Loyola Law School

Further to the post on blogging, anonymous blogs aren't much better than anonymous resumes. Anybody can write comments on a blog, but whether people pay attention may be a different story. The attention span for readers of blogs and blog comments is remarkably short.

A method, comprising:selecting a country;analyzing country data relating to the country;generating at least one category relating to the country;generating a reward score for the country based at least in part on the country data and the at least one category; andgenerating a risk score for the country based at least in part on country data and the at least one category.

Dependent claim 3 is of interest:

The method of claim 2, where the generating a geographic model is electrically generated.

So is claim 4:

The method of claim 3, where the generating the generating the geographic model is accessible over a computer network.

The published application gives for correspondence: BANNER & WITCOFF, LTD;ATTORNEYS FOR CLIENT NUMBER 007131.

Query: what was that Intellectual Ventures was saying about "upper quartile" law firms?

In Sept. 2008, claim 3 was amended so that "electrically" became --electronically--. Of greater interest, the abstract was amended to change "assessing a country as a relocation option" to --an alternative work location--. New matter?

The amendments became more interesting.

Paragraph 3 was amended to delete certain text from the as-filed paragraph 3, which reads:

Many business entities face increasing costs associated with managing, operating, and sustaining their business operations and managing their employees. A business entity may face difficulties in providing an employee with a competitive employment package. Typically, business entities must fiercely compete in their industry to provide attractive salaries and benefits to employees or the business entity will face low attrition rates and significant employee turnover. Many highly skilled employees and employees having unique skills may demand attractive employment packages.

It is an exercise for the IPBiz reader to determine what was deleted.

Initially filed paragraph 4 [below] was also amended:

Business entities have considered many solutions to improve employee attrition rates and decrease the financial strain of a competitive employee market. A typical American employee demands a high salary, good benefits, a good work environment, vacation time, and other job-related perks such as reimbursement for higher education. These job-related perks are expensive and may not be cost-effective for the business entity. A business entity is forced to commit significant resources to employ an American work force and may often find that the demands of American employees far exceed the allotted budget.

Initially filed paragraph 40 [below] was also amended:

In reference to FIG. 2, a method of assessing a country is illustrated. The country assessment may generate a geographic model, at step 200. The geographic model may assess a relocation option for a line of business. The relocation option may include a country, city, time zone, and the like. The line of business may wish to assess more than one country as a relocation option (not shown). For example, a line of business may be considering relocating its operations to a Spanish-speaking country. The line of business may select Mexico and Spain as the countries it wishes to assess and may generate one geographic model for Mexico and another geographic model for Spain.

The amendment is of interest. The words "a Spanish speaking country" became --a country that speaks Language S.--The words "Mexico and Spain" became --Country M and Country S (that predominantly speak Language S)--

Initially filed paragraph 49 [below] was also amended:

Many relocation options experience trends in weather and may suffer several consecutive years and/or seasons in which the weather is severe. For example, the Philippines may experience one typhoon during a first season and ten typhoons during a second season. The Philippines' internal perspective 300 may be negatively affected by the increased number of typhoons. The line of business may consider the internal perspective 300 without completely understanding the short, mid-range, and long term effects that the typhoons had on the Philippines and may refrain from investing and/or considering the Philippines as a relocation option as a result. Further, the line of business may also reconsider a relocation option in which it already invested resources and/or in which it already initiated manufacturing or operations and possibly lost confidence in its decision to proceed with analyzing a country as a relocation option.

Initially-filed paragraph 68 [below], of some interest because of recent events in Mumbai, was also amended:

Multi-country BCP strategy 410 includes any desired strategy to diversify risk to a line of business during a country assessment. In the example described above, a viable location for BCP of India-centric Global Delivery operations may include a country that may assist a line of business in maintaining stable operations during a disaster or crisis. For example, a multi-country BCP strategy 410 may identify the Philippines as a viable country in which to diversity risk for a line of business that has recently relocated to India. The line of business may identify the Philippines as an excellent country from which to base its operations in the event that a disaster, such as a natural disaster or an outbreak of violence, occurs in India and interrupts the operations of the line of business in India.

Initially-filed paragraph 75 [below] was also amended:

Religious tensions may consider whether the country imposes undesirable policies such as civil dissent that may disintegrate into civil war and unacceptable civil rights policies. Religious tensions may also consider the potential for a religious group to obtain power of the government or to replace civil law with religious law. External conflicts may consider the risk to the incumbent government of foreign action, ranging from non-violent external pressure such as diplomatic pressures, withholding of aid, trade restrictions, territorial disputes, sanctions, and the like, to violent external pressure such as cross-border conflicts and war.

Saturday, November 29, 2008

Lists are hot items for getting internet hits. Now and then, yahoo gives a list of 10 places to go to before you die. You better plan on living, because the members of the list keep changing. The current list includes:

1. San Francisco de Asis Church, Ranchos de Taos, N.M. [For those stuck in New Jersey, the Princeton Art Museum has a few O'Keefes that get displayed.]

2. Whaling Museum, Nantucket, Mass. [For those that can't take the boat to Nantucket, Gloucester is pretty good. In passing, one blog reported the Bidens spent Thanksgiving on Nantucket: Once on Nantucket, the Bidens will celebrate Thanksgiving at a 5280-square-foot home on scenic Polpis Road near Sesachacha Pond. Biden rented the house from local builder Larry Maury, son of well known Nantucket entrepreneur John Maury. Not the typical hang-out of Joe Six-Pack.]

3. Battery District, Charleston, S.C. [To recall how things once were, one can go to the slave market. (Biden once referred to Delaware as a slave state, but one bets there is no slave market site in Wilmington.) LBE had a chance to visit Sumter on an anniversary of the "first shot," but still hasn't found the location of "where" the first shot was fired.]

4. Madison Valley, Montana

5. Isabella Stewart Gardner Museum, Boston

6. The Four Seasons Restaurant, New York City

7. The Rothko Chapel, Houston

8. The Huntington Gardens, San Marino, Calif.

9. Robie House (Frank Lloyd Wright), Chicago. [right the University of Chicago campus]

10. The Oregon Coast

[If the "Oregon coast" counts as one location, LBE would have included Bryce and Zion in Utah.]

The site states: This site empowers you to surf patents made available by the U.S. Patent & Trademark Office.As a starting point, please type a natural description of what you are interested in.Patents that are related to your description will be presented for your review.

A website in Australia [Searchable Networked Intellectual Property Electronic Resource . aka SNIPER] keeps track of publications concerning US patent law, and includes the following entry for the month September 2004:

n206. Many patents that are denied are never published. Inventors presumably have a rough awareness of patent application success rates overall (though these rates vary widely depending on whose statistics one chooses), but not an awareness of the reasons for patent denials or of how many NO

- [DELTA] applications are denied. See also Lawrence B. Ebert, Patent Grant Rates at the United States Patent and Trademark Office, 4 Chi.-Kent J. Intell. Prop. 108, 110-15 (2004) (critiquing varying reports purporting to calculate patent grant rates). Compare Robert A. Clarke, U.S. Continuity Law and its Impact on the Comparative Patenting Rates of the US, Japan and the European Patent Office, 85 J. Pat. & Trademark Off. Soc'y 335 (2003) (calculating 75% patent grant rate), with Cecil D. Quillen & Ogden D. Webster, Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office, 11 Fed. Cir. B.J. 1 (2001) (postulating patent grant rate as high as 97% when including continuing applications), and Press Release, U.S. Patent and Trademark Office, Fiscal Year 2006: A Record-Breaking Year for the USPTO (Dec. 22, 2006), available at http://www.uspto.gov/web/offices/com/speeches/06-73.htm (reporting patent allowance rate of 54% for 2006).

In the 2001 paper, Quillen and Webster were trying to correct "raw" grant rate numbers (such as the 54% number) for the effect of continuation applications, and Clarke criticized the nature of their correction, for issues of double-counting.

Although not mentioned by Mandel in footnote 206, Quillen and Webster wrote TWO further papers in the Fed. Cir. B. J. Also, in addition to the 2004 JPTOS paper not cited by Mandel, note an additional paper in the Dec. 2006 issue of JPTOS responding to third Quillen/Webster paper. Mandel's discussion in footnote 206 of the 2008 paper is not thorough and is at least two years out of date.

Footnote 206 related to the text:

This cycle will produce applications on successively more and more obvious advances. As other inventors see more patents on NO

- [DELTA] advances granted, and are generally unaware of the volume of NO

- [DELTA] applications that are denied, n206 there will be greater incentives for inventors to file patent applications on even more obvious advances (for example, on NO

-2 [DELTA] advances). These effects, of course, will cycle. Indeterminacy will lead both to a greater percentage of applications on the set of advances a given quantum below the nonobviousness threshold, and to more applications on the sets of advances that are even more obvious.

One observes that the general decrease in allowance rate (to a level now below 50%) might serve as a disincentive to those filing applications with claims at the boundary of obviousness.

AP notes: The Havasupai tribe of nothern Arizona, whose isolated village lies deep in a gorge off the Grand Canyon, claims Arizona State University and University of Arizona researchers misused blood samples taken from more than 200 tribal members for diabetes research in the 1990s by also using it for research into schizophrenia, inbreeding and ancient population migration.

Can public entities take blood samples for one reason, and use it for another? If, as Madey v. Duke University suggests, getting grants is the "business" of universities, could this amount to fraud? The matter currently is in state court.

Legal Pad, the blog of CalLaw.com, debates the merits of Twitter for lawyers and provides a link to a list of over 300 "absolute-must-follow lawyer-twitterers." I first learned about Twitter at BlogHer 2007 in Chicago, and I created a Twitter account, but its utility for lawyers I confess remains beyond me. What would I have written yesterday? That I was researching whether the 30-day deadline to submit corrections to a deposition transcript is extended 5 days for service by mail (it is, according to Weil & Brown)? Fascinating stuff.

**Of Twitter, there has been some research by Bernardo A. Huberman, who once worked in the area of superionic conductors-->

In the past, Huberman worked in condensed matter physics, dealing with systems ranging from superionic conductors to two-dimensional superfluids, and has made contributions to the theory of critical phenomena in low-dimensional systems. He is one of the discoverers of chaos in a number of physical systems, and also established a number of universal properties of nonlinear dynamical systems. His research into the dynamics of complex structures led to his discovery of ultradiffusion in hierarchical systems.

**UPDATE. SecuringInnovation has the following entry related to Twitter-->

Innovation: Baby TwitterExpectant father Corey Menscher wanted to “create a device that would give me a chance to be aware of our baby’s movements”. He created a waistband for his wife which sends a Tweet everytime the baby kicks, naming the project “Kickbee”.

In passing, IPBiz heard on the radio that some folks in California are being buried with their cellphones and/or Blackberries. And people thought the Egyptians were weird!

Tonight, following Kevin O'Keefe on Twitter, we see him pointing to an interesting article in U.S. News and World Report about how companies use social media to be a part of the conversation.

The onslaught of blogs, discussion forums and user-generated media has changed the flow of information about people, products and brands forever. Anyone with a computer, a video camera or even a cell phone can post information, reviews and comments about you and your brand on dozens of highly visited online destinations.

It's no longer enough to create a website and assume that prospects will learn about your company solely from there. In today's online social media world, businesses of all shapes and sizes must actively participate in online reputation management.

Of course, the best way to manage your online reputation from a business standpoint is to put out great products, provide excellent customer service and honor all your commitments. That's certainly a great start, but you may still need to monitor and respond to what's being said about your organization.In the end, writes John Jantsch, the only way to control what people say about your company is to be part of the conversation. We might add, even when the conversation isn't about your company but about another company with a very similar name.

Nicholas Carr, author of The Big Switch, Rewiring the World, has calculated that maintaining a character (known as an avatar) in the Second Life virtual reality game, requires 1,752 kilowatt hours of electricity per year. That is almost as much used by the average Brazilian.

“It’s not an unreasonable comparison,” said Liam Newcombe, an expert on data centres at the British Computer Society. “It tells us how much energy westerners use on entertainment versus the energy poverty in some countries.”

Though energy consumption by computers is growing - and the rate of growth is increasing - Newcombe argues that what matters most is the type of usage.

If your internet use is in place of more energy-intensive activities, such as driving your car to the shops, that’s good. But if it is adding activities and energy consumption that would not otherwise happen, that may pose problems.

Newcombe cites Second Life and Twitter, a rapidly growing website whose 3m users post millions of messages a month. Last week Stephen Fry, the TV presenter, was posting “tweets” from New Zealand, imparting such vital information as “Arrived in Queenstown. Hurrah. Full of bungy jumping and ‘activewear’ shops”, and “Honestly. NZ weather makes UK look stable and clement”.

In its letter to the USPTO on the proposed appeal rules, Intellectual Ventures noted: Intellectual Ventures typically employs firms in the upper quartiles of the spectrum for work involving complex issues and risks...the AIPLA third quartile billing rate for associates in San Francisco in 2006 was $413 [ per hour]. The USPTO had estimated $310 per hour for appeals.

The letter had an appendix with representative cases of Intellectual Ventures. The application with the fewest claims (20060047435) had twenty claims, that with the most claims (20060116824) had 194 claims. One notes that there was also 20060047433 and 20060047434.

The letter is signed by Casey Tegreene, Roy Diaz and Dale Cook. The date of the covering email was 8 Aug. 08.

Of the 20 claim application, 20060047435, there was a final rejection mailed on August 7, 2008 to Clarence Tegreene of Searete LLC. There was a provisional double patenting rejection over application 11/004,446. There was an obviousness rejection over Chirino (20030022285). Applicants filed an RCE on 31 Oct. 08. In applicant remarks, received on 3 Nov 08, applicant did attempt to overcome the obviousness rejection, citing, among other things, MPEP 2143.03.

A similar saga exists for 20060047433, with a final rejection on May 22, 2008 and an RCE request on 25 Aug. 08. There was a provisional double-patenting rejection over 11/044,656 and over other applications. There were rejections under 112 P2 and under 112 P 1 (enablement)

ROBERT Z. CASHMAN asks about the significance of the above post. One notes that Intellectual Ventures (operating sometimes as Searete) had a number of patent applications at the time of their letter to the USPTO that had a lot of obviousness-type double-patenting rejections. The interested reader might more fully investigate the applications.

The issue here is two-fold: 1) whether RPX can control itself regarding costs to its own members and not become a mafia-type of organization extorting funds from corporations who have the choice of "join or be sued," and 2) what RPX will do to companies who choose NOT to join their organization.

As per the question of whether RPX can control itself internally, I see from looking at Wall Street that companies do not and can not control themselves when there is opportunity to get away with an abuse.

He wrote about Ocean Tomo:

I have spoken to guys at Ocean Tomo, and my opinion is that what they intend to do is quite innovative. Right now patents are generally valued by analysts who work either independently and know the technology field or work for the company doing the purchasing. The problem with valuation in its current form is that there are usually only a few people looking at the value of a particular set of patents before an offer is presented for the purchase and/or sale of the patents. However, with Ocean Tomo's method, the value of a patent is not only (hopefully) valued initially by an analyst, but that value is then CONFIRMED by bids and valuations by those looking to purchase the patents and/or by those who have some sort of input as to the value of the patents.

IPBiz observes that a patent CANNOT be analyzed independently from a business plan. IBM looked at Chester Carlson's patents again and again (and had Arthur D. Little look at them, too) and concluded xerography wasn't going anywhere. Nobody, but one small company in Rochester, placed ANY value on Carlson's patents. In turn, Xerox in the 60s and 70s had great ideas, but no business plan, but others used the ideas, profitably.

The information in a patent is made publicly available, so that people can made deals. The people that match the patent with the business plan are the winners.

Friday, November 28, 2008

IPBiz notes the following from a press release by the law firm of Gardner Groff Greenwald & Villanueva, P.C.:

In January 2009, the firm will take the following steps:

• Fee Reduction. Gardner Groff has a tradition of flexible and innovative alternative fee arrangements. Instead of billing only by the hour, the firm handles many projects on a flat fee basis, and the firm’s 2009 flat fee schedule will be reduced by as much as 12% compared to 2008. “Because we typically staff our projects with more experienced lawyers, we expect the effect of the flat fee reduction on firm revenues will be somewhat offset by increased efficiencies,” said Gardner.

• Rate Freeze. The firm’s 2009 hourly rates will not increase over 2008 rates. Gardner emphasized, “This is a complete freeze—there will be no annual advance for a lawyers’ additional year’s experience, and no overall rate structure escalation.” (Other firms often will use January as the point where rates will be raised individually as each of their lawyers advance up a firm’s tiered rate structure – “the ladder” – with each additional year of experience costing clients more. That means a 2008 sixth-year associate becomes a seventh-year junior partner in 2009 and, thus, has a higher hourly rate. Other firms will also typically raise their overall rate structure annually.)

Given that Gardner Groff’s rates were already about 20% below the Atlanta market average, many of the firm’s clients may see additional savings of anywhere from 3% to 12% across the board over the course of 2009, for the same top-quality intellectual property services.

“These adjustments may allow a client to stretch their budget further and file several more patent applications, which could be the difference between moving forward with profitable innovations or stagnating. Gardner Groff is committed to helping its clients succeed and not restraining them from protecting their intellectual property simply because their legal budgets are stressed."

The EPO decision upholds the rejection of WARF's claims as being impermissible under a rule of the European Patent Convention that prohibits the patenting of inventions which concern "the uses of human embryos for industrial or commercial purposes". The Enlarged Board of Appeals emphasised that when the priority patent application was filed in 1995 the only method of obtaining hESCs, as described in the application, required the use of a human embryo; however after Thomson's discovery many hESC lines became available through stem cell banks, removing the need for researchers to culture the cells from embryonic material.

This decision should not therefore affect patent applications for hESC technologies developed afterwards, including technologies developed by Geron that allow scalable manufacture of hESCs for therapeutic and drug discovery applications and their differentiation into different functional cell types.

Geron's portfolio of patents covering hESC technologies includes 34 issued US patents, 15 issued UK patents and about 60 issued in other countries, in addition to 220 applications pending.

Geron is saying that there are other applications in the pipeline that will past muster under the points made by the EPO/EBA on Nov. 27, 2008.

stuff.co.nz reported: Radio New Zealand has pulled Noelle McCarthy off air until Boxing Day after an inquiry uncovered fresh cases of suspected plagiarism. (...) Items on octopuses, Halloween and Wimbledon fashion drew heavily on articles printed in British newspapers.

A press release from scoop.co.nz stated:

Radio New Zealand has the most public and transparent editorial policies and operational processes of any broadcaster in New Zealand. All staff are required to be aware of the policies and abide by them.

Noelle McCarthy will continue to prepare for her Summer Noelle programme scheduled for broadcast from Boxing Day but will not present Afternoons for the rest of the year.

Radio New Zealand chief executive Peter Cavanagh and networks manager John Howson have put themselves in the firing line for their softly-softly approach to plagiarism by radio host Noelle McCarthy. (...)

The unsigned statement is part of a sorry saga in which the state broadcaster has obfuscated and delayed queries from the Business Herald about problems on the afternoon show.

This column reported on November 14 that John Howson - a former rugby commentator who has risen to the top at RNZ - even issued a statement to staff saying (unspecified) rumours about McCarthy were 100 per cent wrong and coaxed staff to quell them.

(...)

While some staff have taken solace from Radio New Zealand's sympathetic treatment of McCarthy through the investigation, they have questioned the damage to RNZ. "Some people are asking whether there would have been the same reaction if this had been a young journalist or lower-profile journalist or presenter," said a public radio source. [IPBiz: ask Laurence Tribe or Glenn Poshard]

The Daily News reported: A Wal-Mart worker died after being trampled when hundreds of shoppers smashed through the doors of a Valley Stream Long Island store on Nov. 28, 2008.

"He was bum-rushed by 200 people," said Jimmy Overby, 43, a co-worker. "They took the doors off the hinges. He was trampled and killed in front of me. They took me down too...I literally had to fight people off my back."

The report cites a number of strategies pharma uses to hold onto exclusivity.

A “patent thicket,” also known as a patent cluster, consists of hundreds of different patents filed across Europe on a single drug, with some patents coming late in the drug’s life cycle. The patent maze can make it hard for a would-be generic competitor to figure out when relevant patents have expired, and when it’s safe to bring a generic to market.

Patent litigation quadrupled between 2000 and 2007, the report found, with generic companies winning most of the cases in which a final judgment was rendered. And settlements, including those in which drug companies pay generic companies to delay market entry, totaled more than 200 million Euro, the report found.

The report doesn’t single out individual companies. But the January raid targeted big players, including Pfizer, AstraZeneca, Sanofi-Aventis and GlaxoSmithKline. And a follow-up raid earlier this week included the generics giant Teva.

"Individuals and governments want a strong pharmaceuticals sector that delivers better products and value for money. But if innovative products are not being produced, and cheaper generic alternatives to existing products are being delayed, then we need to find out why and, if necessary, take action."

The investigation, based partly on documents seized in raids on pharmaceutical companies' offices earlier this year, identified several practices by which the firms forestall generic competition:

Patent clustering, where a company forms a dense network of patents around a medicineDefensive patenting, in which inventor companies patent technologies they do not seek to use, with the intention of blocking generic competitionPatent infringement litigation against generic companies that seek to market generic equivalentsPatent settlements with generic companies that limit competitionInterventions by inventor companies before regulatory bodies to prevent or delay generic approvals

A Santa Clara County jury has ordered drugmaker Pfizer to pay $38 million in compensatory damages to a leading medical research nonprofit for stealing trade secrets to develop a pain relief drug [Bextra].

The Superior Court jury reached the verdict Monday [22 Dec 08] in a 2004 lawsuit filed against Pfizer by the San Bruno nonprofit Ischemia Research and Education Foundation. The jury's foreman said after the trial that evidence showed Pfizer had conspired with a former employee of the foundation to acquire data that otherwise would have cost tens of millions of dollars.

The report mentioned issues of strategy:

The foundation's head, Dr. Dennis Mangano, said Monday that spending $15 million in legal fees instead of accepting a financial settlement was worth it.

"It's very risky going against a big company like Pfizer," Mangano said. "The right thing has been done . . . . This verdict was extremely satisfying to me, because I had felt that Pfizer had stolen the information we had gathered in order to manipulate it to keep their drug Bextra on the market. They were willing to profit at the expense of patient safety, something I have fought against my whole life."

**And on the general topic of lawsuits-->

Pfizer alone has faced more than 10,000 lawsuits in the past few years over its drugs and their alleged side effects. Waxman says the hundreds of firms representing Pfizer on product liability work were a nightmare to manage. The legal department thought that it would benefit, both operationally and financially, from working more closely with a smaller group of firms, though lawyers there refuse to put a dollar amount on any potential savings.

Robots.txt at the USPTO

Patently-O wrote:

The BPAI opinions are stored on the site http://des.uspto.gov. Unfortunately that site is not crawled by web indexes such as Google or Yahoo. The problem is that the site includes a "robots.txt" file that excludes such activity. See http://des.uspto.gov/robots.txt. Robots are also blocked from crawling the USPTO patent database (http://patft.uspto.gov/robots.txt) and the PAIR site (http://portal.uspto.gov/robots.txt). Also blocked from crawling is this site: http://www.uspto.gov/web/gifs/ - what is that?

A comment under the patenthawk post on Suppression, about Hal Wegner asserting that the USPTO is suppressing information on the outcome of petitions to the USPTO-->

robots.txt only blocks if it is respected.google respects it.there is nothing to stop some guy from the Ukraine from scraping and indexing the site.

Traditional robots.txt exclusion protocols were pretty easy to understand, but they never really kept up with the times. I'm thankful that in early 2008, Microsoft, Yahoo, and Google joined up to expand their robots exclusion protocol to honor a series of new characters and directives that the traditional robots.txt protocol doesn't address. This move represented a vast expansion of the power Webmasters have to control bot access to their content, not only with what shows up in SERPs but also how it appears.

The perfect complement to this expanded robots protocol is Google's robots.txt analysis tool in Webmaster Tools. This tool is a sandbox that enables you to plug in different URL exclusion patterns, pit them against specific URLs from your site, and see exactly how Google's bot (and in theory, any major search engine crawler) will react to the code.

The IHT noted: Instead, they [search engines] use a 15-year-old program called robots.txt. To ensure that their articles turn up in searches, publishers also have to keep using robots.txt, which gives them little control over what happens to their material after it has been released on the Internet.

Rubin said adoption of the new protocol could encourage publishers to make additional information available in digital form. Some newspaper publishers, for instance, have been reluctant to open their archives online.

Complicating the battles between search engines and copyright owners is a disagreement over how best to profit from the rise of the Internet. Some newspaper publishers, for instance, try to make it as easy as possible for search engines to find their articles in an effort to attract more Web traffic and to sell more online advertising.

Critics of the Automated Content Access Protocol have compared it to the "digital rights management" systems imposed on some online music services, saying such restrictions inhibit the development of Internet business models.

Scraping - Scraping (note, not “scrapping”), is taking content that was not published in a feed but by reading the HTML source. Google scrapes in fact, and really they should provide an opt-in rather than an opt-out via robots.txt. We let Google get away with it because they benefit us with traffic, your scraper+adsense site will not get the same treatment.

ALSO, note USPTO Application published application 20060174106 System and method for obtaining a digital certificate for an endpoint which discusses public key infrastructure (PKI) .

Thursday, November 27, 2008

Every six minutes, digital billboards in the Staten Island Mall will flash the photos of five convicted shoplifters for 15 seconds. These ads will appear on eight and nine-foot-tall plasma screens dubbed "Smart Screens," that have a 65-inch digital display.

"I wanted to do something just to warn people who might have ideas about shoplifting," Staten Island District Attorney Dan Donovan told Larry McShane, a staff writer at "The New York Daily News."

Shoplifting is a crime; the general population knows what it is, and these people were convicted.

In the K.Y. Cha matter against Bruce Flamm, Cha made much of the fact that he had not been "convicted" of plagiarism. In fact, there is no crime of plagiarism, and what it means, at least to some, is a bit iffy. Glenn Poshard was found to have committed "unintentional" plagiarism, but not intentional plagiarism, according to a panel convened by SIU. Did he copy without attribution. Yes. Allison Routman copied parts of three sentences from Wikipedia, related to historical facts, and this act was deemed an honor code violation by a group of professors, and Allison walked the plank. A university president in California copied a Thanksgiving greeting from someone else, and an ethics professor said this was mere copying, not rising to the level of plagiarism. This involved "ghostwriting," as the copying was done by someone else on behalf of the president, who signed the greeting, much as the Laurence Tribe matter involved ghostwriting more than plagiarism by Tribe, who nevertheless did sign the work.

Part of the problem with exposure is that there is no clear definition of what plagiarism is. Copying without attribution should be simple enough. But is it? There was a fair understanding of what happened in the Cha matter with KJOG and "Fertility and Sterility." But Cha took issue with "convicted of plagiarism." Nobody really discussed Biden's plagiarism at Syracuse during the election, but Biden copied five pages without attribution. The word "plagiarism" has a bad connotation, but the acts which constitute plagiarism are a bit fuzzy.

AP reports: In the past year, 30 percent of U.S. high school students have stolen from a store and 64 percent have cheated on a test, according to a new, large-scale survey suggesting that Americans are too apathetic about ethical standards.(...)Thirty-six percent said they used the Internet to plagiarize an assignment, up from 33 percent in 2004.(...)Despite such responses, 93 percent of the students said they were satisfied with their personal ethics and character, and 77 percent affirmed that "when it comes to doing what is right, I am better than most people I know."

**footnote on "publicizing"

eplay.typepad wrote of the story of Lois Feldman: I feel kind of sorry for Lois Feldman. In an interview - She said her life was devastated, or something to that effect..... The Metrodome Sex Mom was caught having sex in a public restroom during the Minnesota/Iowa Football Game with someone she never met. She was drunk, arrested, and released to her husband. Lois was fired from her job at an assisted living center- and her name will live in infamy as a Google search term.

IPBiz notes that there will likely be more Google hits for Lois Feldman, than for Loye Young's plagiarists.

eplay also wrote: Consult a lawyer over your firing (See #3) In Calif- you can't be fired if you have a medical condition. One might think about that, and also about the ADA. The issue might be the publicity, not the drunkeness, but this is a different story.

MyFoxTwinCities covered the story in a piece titled Iowa Woman Caught Having Sex in Metrodome Blames Alcohol which concluded: Lois Feldman said her attorney has encouraged her to fight the ticket. "He feels I was taken advantage of in my state of mind," she said. "This is not me. We're a very good family. This shouldn't happen."

InfoWorld has a piece on "patent trolls" -- NPEs (non-practicing entities) . The name non-practicing entity implies that the entity does NOT practice the invention, but InfoWorld writes: As the name implies, NPEs do no research and hold no patents of their own making. Thus, universities are not NPEs in this definition , but then neither was NTP of the NTP v. RIM (BlackBerry), or Eolas.

From InfoWorld: As the name implies, NPEs do no research and hold no patents of their own making. Their sole purpose is to snap up patents -- often from companies forced to liquidate their assets -- and look for products that might infringe on those patents they now hold.

But observe also:

RPX does no research and holds no patents of its own making. Its sole purpose is to snap up patents -- often from companies forced to liquidate their assets -- and look for products that might infringe on those patents they now hold.

InfoWorld: Once a product is targeted, the NPE sends a letter to the product's maker, threatening to sue the supposedly infringing company unless it pays a license fee or settles out of court.

In many cases, it is cheaper for a large company to settle even if the case has very little merit, as legal defense could cost millions.

But observe: it is cheaper for a large company to take a license from RPX even if the litigation threat is small, as legal defense could cost millions.

Reuters reported on Thursday, Nov. 27: European regulators on Thursday ruled against allowing a patent on developing human embryonic stem cells, a decision that could stifle research by stem cell companies for commercial purposes.

The rationale: "European patent law prohibits the patenting of human stem cell cultures whose preparation necessarily involves the destruction of human embryos," the European Patent Office said in a statement.

"That is the decision reached by the Enlarged Board of Appeal of the European Patent Office (EPO)."

Thus, the issue is one of unpatentable subject matter.

In terms of impact on European stem cell research, Reuters wrote: The board's decision to uphold the earlier ruling could keep some companies from jumping into the sector and steer investors to put their money elsewhere. AND The problem for companies looking to profit from technology using stem cells is that without patent protection there is little incentive to pour money into research.

In contrast, John Simpson (who spearheded the re-exam challenge to the US WARF patents which went down in flames) had written:

The groups said the patents' dubious validity is underscored by the fact that no other country in the world honors them. As a result, U.S. researchers have sent research monies abroad where they can avoid paying royalties to WARF.

Well, let's see if stem cell research prospers in Europe after the EPO decision.

Wednesday, November 26, 2008

In bit of almost comic stupidity, President Raj Chopra of Southwestern University in California (Chula Vista) plagiarized a Thanksgiving greeting from the CEO of Southwest Airlines.

The text was a trivial allusion to President Lincoln, but it copied too much:

The paragraph in question reads:

“Even during the dark days of 1863 during the Civil War, President Lincoln found much for which to be thankful: 'The year that is drawing towards its close has been filled with the blessings of fruitful fields and healthful skies.' I hope your own year has seen fruitful fields and healthful skies.”

The only difference between Chopra's message and the one from Gary Kelly of Southwest Airlines is the last sentence. Kelly wrote, “On behalf of the Southwest Family, I hope your own year has seen fruitful fields and healthful skies.” (as reported by the San Diego Union Tribune)

The Union-Tribune also noted: Kirk Hanson, executive director of the Markkula Center for Applied Ethics at Santa Clara University, said Chopra's use of the passage is “a trivial bit of copying, not worthy of the name plagiarism.”

One wonders "where" Kirk Hanson was when Allison Routman walked the plank.

One recalls Glenn Poshard copied from a book to summarize, in his Ph.D. thesis, a period of literature, even though the book was published BEFORE the period in question.

Sometimes, it's not the copying that's so bad, it's what was copied...

MarketWatch: Barr Pharmaceuticals, Inc. (of Montvale, NJ) on Nov. 26 confirmed that its subsidiary, Barr Laboratories, Inc., has initiated a challenge of the patent listed by Anesta in connection with its Amrix(R) (cyclobenzaprine hydrochloride) extended-release capsules, 15mg and 30mg.

This is through a lawsuit. MarketWatch noted: On November 26, 2008, Eurand, Inc., Cephalon, Inc., and Anesta AG filed suit in the U.S. District Court for the District of Delaware to prevent Barr from proceeding with the commercialization of its product. This action formally initiates the patent challenge process under the Hatch-Waxman Act.

Mylan Inc. today [Dec. 1] confirmed that the company and its subsidiary, Mylan Pharmaceuticals Inc., have been sued by Cephalon Inc., Eurand Inc. and Anesta AG in connection with the filing of an Abbreviated New Drug Application (ANDA) for Cyclobenzaprine Hydrochloride (HCl) Extended-release (ER) Capsules, 15 mg and 30 mg, the generic version of AMRIX(R) Capsules.

Mylan believes it is the first company to have filed a substantially complete ANDA containing a Paragraph IV certification for the product and expects to be awarded 180 days of sole marketing exclusivity once final approval is obtained. Mylan filed its ANDA with the U.S. Food and Drug Administration (FDA) in August. Cephalon, Eurand and Anesta filed a lawsuit Nov. 26 in the U.S. District Court for the District of Delaware alleging infringement of U.S. Patent No. 7,387,793.

On November 24, Rambus won a (small) pretrial ruling in its case in ND Cal, of which Bloomberg had the following text in a Nov. 25 article:

The ruling means Whyte “already found one claim for Rambus that they won’t have to argue,” Jeff Schreiner, an analyst at San Diego-based Capstone Investments who doesn’t own Rambus shares, said today in a phone interview. “It starts to narrow the focus of the trial. You don’t get jurors lost in the complicated nature of the patents.”

Whyte denied Rambus’s request for similar pretrial rulings covering 10 other elements of its patents. Those claims will be argued at the trial covering infringement claims over DDR2, or double rate 2 memory chips, and a newer generation, DDR3, as well as graphics memory. Samsung, Hynix and Micron last year accounted for more than 50 percent of revenue in the dynamic random access memory market, according to Schreiner.

As Rambus moves forward, one sees how confused and off-base Jaffe and Lerner were in "Innovation and its Discontents."

Patent lawyer, Lawrence B. Ebert, notes that Rambus won a "small" pretrial ruling this week. I suppose it is small in view of the inevitable, but "big" to the market as Rambus is bouncing up about 20% today.

Mr. Ebert has an ongoing "mine is bigger" discussion with Mike Masnick regarding Mike's alleged reliance on Jaffe and Lerner for his understanding about patent law. Entertaining reading.

The above comment about Jaffe and Lerner, who vilified Rambus in Innovation and Its Discontents, has nothing to do with Masnick. IPBiz has criticized Masnick's lack of understanding of patent law on many grounds, not all of which have to do with Jaffe and Lerner.

Tuesday, November 25, 2008

"At our current rate in about 2012 filings may equal the number of cases we process, but we will probably have 800,000 cases in the backlog by then, so we need to gain efficiencies in the system, and that's what we are trying to do with some new programs."

An explosion in Allentown, PA on 25 Nov 08 atomized one house, and damaged some adjacent homes. There were at least two oddities:

#1. Even though there was nothing left of the house, the two people who were INSIDE the house at the time of the explosion survived.

#2. The gas company is saying it was NOT a gas explosion.

from AP: Cesar Coto, 52, and Miguel Irizarry, 41, were conscious when they were extricated from the leveled home and taken to a hospital, Fire Chief Robert Scheirer said. The extent of their injuries was not clear.Scheirer said he felt the blast in his office about a mile away and thought something in his building had blown up.

The question of obviousness is resolved on the basis of underlying factual determinations including (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 127 S. Ct. at 1734 (“While the sequence of these questions might be reordered in any particular case, the [Graham] factors continue to define the inquiry that controls.”)

When presented with a claim including nonfunctional descriptive material, an Examiner must determine whether such material should be given patentable weight. The Patent and Trademark Office (PTO) must consider all claim limitations when determining patentability of an invention over the prior art. In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983).

The BPAI also cited In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir. 1994), for the proposition: The burden of establishing the absence of a novel, nonobvious functional relationship rests with the PTO.

The law in the area of patent-eligible subject matter for process claims has recently been clarified by the Federal Circuit in In re Bilski, No. 2007- 1130, __ F.3d __, 2008 WL 4757110 (Fed. Cir. Oct. 30, 2008) (en banc). The en banc court in Bilski held that “the machine-or-transformation test, properly applied, is the governing test for determining patent eligibility of a process under § 101.” Id. at *7. The court in Bilski further held that “the ‘useful, concrete and tangible result’ inquiry is inadequate [to determine whether a claim is patent-eligible under § 101.]” Id. at *9.

But in a series of e-mails sent to members of his extensive mailing list, Mr. Wegner, the dean of U.S. patent commentators, uncharacteristically excoriated the appointment of Stephen M. Pinkos to a position on the Patent Public Advisory Committee (P-PAC).

Noonan wrote of Pinkos: Although he is a graduate of the DePaul University School of Law, he is not licensed to practice law (according to Martindale-Hubbell) IPBiz notes that Martindale-Hubbell is not the final answer on "who is licensed to practice law." Of nor is there any record that he has passed the registration examination to practice before the Patent Office, IPBiz notes that the chief IP attorney at Cisco is not a registered patent attorney. Also, the patent attorney roster currently lists Leslie Misrock, who has been deceased for a number of years. Q. Todd Dickinson was not listed on the roster while he worked for a law firm, and a company, after his tenure at the USPTO; he now is listed.

For example, let’s look at who authored that 2007 PPAC report. Among those putting their names to it were Kevin Rivette, the committee’s chairman, Gerald Mossinghoff, Carl Gulbrandsen, Andrea Ryan and Dean Kamen. Would these people, all of whom have long and respected experience in US patent law and practice, as well as records of substantial achievement, really have authored a piece of work designed merely to “whitewash” the USPTO?

As was the case in September, 2008, EETimes promptly followed up on a story in the Wall Street Journal on patent acquisition companies, including RPX. There was text:

"One of RPX's key value points is the speed of their decision making with respect to potential acquisitions, enabled by an independent team of professionals that does not require membership or investor approval," said Mike Mclean, vice president of professional services at Semiconductor Insights (Kanata, Ontario), part of United Business Media which publishes EE Times. "Speed is a strong differentiator in the patent marketplace as many sellers are as motivated by time to money as they are by the size of the offer," he added.

Canadians should well remember the case of NTP v. RIM (the maker of the Blackberry). In that case the relevant patent was in the control of a company of the inventor, who had tried to practice the invention, and did not surrender the patent to an NPE. People should note that RPX will offer no immunity whatsoever against strongly-motivated inventors who control their own patents. Further, in a market with "less valuable" patents, accuracy rather than speed will be the controlling variable in patent acquisition. Separately, one recalls Chester Carlson's patent on xerography, which Carlson tried to market to large companies, including IBM and Kodak. At one point, one of the large companies called in Arthur D. Little, who advised that xerography would not be commercially viable.

EETimes also wrote:

RPX is essentially a volume play, aiming to charge its members less per patent license than other approaches but hoping to harvest a larger set of customers. With membership fees starting as low as $35,000, "we provide a service for potentially thousands of companies," Amster said.

The company could continue to buy up to $100 million in patent rights with as few as ten members, but probably needs at least 20 members to remain cash-flow positive, Amster said.

To date, this is so much ink-splashing from the Wall Street Journal, which has otherwise not showed much knowledge of the patent system, a sad commentary on the nation's leading business journal.

Monday, November 24, 2008

EMG has filed suit against Apple in ED Texas for allegedly infringing US patent 7,441,196 with the internet navigation system of the iPhone.

MacWorld wrote:

EMG’s, patent, filed with the U.S. Patent and Trademark Office and given U.S. Patent number 7,441,196, describes an “Apparatus and method of manipulating a region on a wireless device screen for viewing, zooming and scrolling internet content.” The patent was filed on March 13, 2006, and was granted on October 21, 2008.

The “‘196 patent,” as the suit describes it, sports 76 individual claims. One of the claims covers the display of Internet content reformatted from HTML to XML on mobile devices. EMG describes that as “the industry standard currently displayed by the iPhone.” Additional patnet claims include the technology for manipulating a region of the screen for zooming and editing.

In the prosecution of the '196 patent, the applicant overcame obviousness rejections over Kanevsky (US 6,300,947) and Brintzenhofe (US 6,928,610) with assertions that the Examiner misinterpreted the scope and content of the prior art, and thus failed to appreciate the differences between the prior art and the claimed subject matter.

The case was prosecuted by SoCal IP Law Group.

And, yes, there is still a pending application in the family, 12/253,814 filed on 10-17-2008.

**UPDATE**

Writing applications for iPhones is big business. See There’s Gold In Them iPhones, mentioning among others, Ge Wang of Stanford, who wrote various apps including a voice changer that can make you sound like anything from Darth Vader or an elf on helium, and a program called Ocarina that turns the iPhone into an electronic wind instrument.

MarketWatch reported: Hesco Bastion Limited, the manufacturer of patented Concertainer(R) units used in military force protection, homeland security and flood protection, announced today that a U.S. federal court has issued a consent order and judgment, favorably resolving a case the company brought against Blue Marines Services, Inc., a company in Fairfield, Iowa.

Concluding that "half the names you're hearing are because of self-promotion and the other half are logical," a blog mentions several names for USPTO Director under Obama: Q. Todd Dickinson, Robert Armitage [by McCain maybe, but by Obama???], Gary Griswold [same, ?], patent attorneys Ray Millien and James Pooley, law professors Mark Lemley of Stanford and Arti Rai of Duke.

One of the things that makes Kunin such a perfect choice to be the next Director of the Patent Office is that he rose from the ranks of an examiner. Kunin joined the PTO as a patent examiner in June of 1970, became a Senior Examiner in 1977, Director of the Manufacturing Group in May of 1983, and when a new Electrical Communications examining group was formed in April of 1984, he became its first Group Director. Yet another thing that makes Kunin extremely attractive is that he has been in private practice since November 1, 2004, serving as a partner with Oblon, Spivak, McClelland, Maier & Neustadt, P.C.

A San Francisco start-up [RPX] is disclosing details of a new service to address patent risks facing technology companies, and has lined up Cisco Systems Inc. and International Business Machines Corp. as initial members.

You remember Cisco, the (former) home of patent troll tracker Rick Frenkel and home of Mallun Yen, the IP chief who is not a registered patent attorney.

Clark continued:

RPX, in response, plans to become what it calls a "defensive patent aggregator," buying patents to keep them from firms that might use them as the basis of lawsuits or to press for licensing payments. Companies that pay a fixed annual fee receive licenses to the patents purchased by RPX, which pledges never to assert them.

John Amster, RPX's co-chief executive, hopes to attract hundreds and eventually thousands of corporate members. "At thousands of members I think it's a game-changing business," Mr. Amster said. (...) revenue comes from membership fees -- $35,000 to $4.9 million, depending on a company's operating income (...) Mr. McCurdy said AST and RPX could wind up bidding against each other on patents, but sees them mostly as allies pursuing similar goals. "They are completely complementary," he said.

Cisco was mentioned: A spokesman for Cisco, which is based in San Jose, Calif., said RPX's "objective of defensively pooling patents is a sensible approach to the continuing problem of litigation by firms that don't produce products or services."

Our pricing is set on a rate card based on the value of the service, which is based on the size of your company. We are guaranteeing the rate card won’t change, other than CPI adjustments.

The "value of the service" would seem to be related to the probability of getting sued, times the cost of a lawsuit, which would have nothing to do with the size of the company.

TechCrunch writes: What RPX really offers is a team who knows how the patent game is played, buying up patent rights on behalf of its members. They know how it is played, incidentally, because they used to play for the other side. Patent trolls, known as “non-practicing entities” (NPEs) in legal parlance, are making up an increasing percentage of all patent litigation—nearly 17 percent last year, up from about 3 percent at the beginning of the decade. And intellectual-property litigation always goes up during a downturn (see charts below). The folks at RPX are gearing up to do battle against the patent trolls they once worked for.

One guesses that knowledge of the "patent game" is distinct from knowledge of the patent system, per se. If companies like Cisco would learn more about the patent system and "what's in" patents in their technical area, they might not need to engage companies who buy up rights to a raft of patents, which may or may not be threatening to companies like Cisco.

See previous posts on IPBiz:

http://ipbiz.blogspot.com/2008/09/more-on-wsj-piece-on-intellectual.html [Then, TechCrunch on previous WSJ article: And copycat companies like RPX Corporation (headed up by a former Intellectual Ventures executive and backed by Kleiner Perkins and Charles River Ventures) are beginning to pop up.]

A New York Times story, based on an investigation by Senator Charles E. Grassley, reported that Dr. Frederick K. Goodwin, a former director of the National Institute of Mental Health and current host of the NPR radio program "The Infinite Mind" -->

had received from GlaxoSmithKline $2,500 to give a promotional lecture for its mood stabilizer drug, Lamictal, at the Ritz Carlton Golf Resort in Naples, Fla. In all, GlaxoSmithKline paid him more than $329,000 that year for promoting Lamictal, records given to Congressional investigators show.

The Times further wrote

In an interview, Dr. Goodwin said that Bill Lichtenstein, the program’s producer, knew of his consulting but that neither thought “getting money from drug companies could be an issue.”

“In retrospect, that should have been disclosed,” he said. [Lichtenstein denied knowledge of Goodwin's conflict.]

The Times further noted: The radio program has received major underwriting from the National Institutes of Health and the National Science Foundation, both of which have policies requiring grantees to disclose and manage conflicts of interest.

Some of this evokes the major conflicts that riddle California's CIRM. One recalls the words of Don Reed: But if we disqualified every board member who might indirectly benefit from the California stem cell program, we would have nobody left. Indeed not a bad idea.

A different view of "indirect benefit" came from Kenneth Taymor, as referenced in the Sacramento Bee:

"Taymor, who has been watching the institute's [CIRM's] operations for three years, noted that nearly everyone on the institute's governing board – medical school deans, university officials – has some sort of financial interest in the grants being awarded.

"Even with officials recusing themselves, the board's deliberations, he said, have the feel of 'a club that was allocating money among themselves' based on preordained decisions."

Sunday, November 23, 2008

Abstract: The present invention relates to a sandwich assembly tool and methods of making a sandwich, which may be a hot or cold sandwich, quickly by pre-assembly of various sandwich components and simultaneous preparation of different parts of the same sandwich. The sandwich assembly tool is composed of a member preferably having one or two cavities for containing a quantity of garnish. The cavities are used for the assembly of the sandwich. The tool may have a raised ridge adjacent one or both cavities for placement against the hinge of a bread component. Methods of making a sandwich are disclosed. The methods may include one or more of the use of preassembled sandwich fillings, assembly of garnishes in advance of a customer's order or while other portions of the sandwich are being heated using the sandwich assembly tool, the simultaneous heating of a bread component and the sandwich filling, placing the bread component over the tool containing garnish, and inverting the tool and bread combination to deposit the sandwich garnish onto the bread component.

first claim:

A method of filling an order for a sandwich comprising: toasting a bread component for the sandwich for less than about 1 minute in response to the order in a first heating device; and initiating and completing the heating of a sandwich filling for the sandwich from about 40.degree. F. or less to about 120.degree. F. or more in a second heating device, while the bread component is heating, in response to the order.

#2. 20060134272, 11/018959, filed December 21, 2004

first claim:

A sandwich assembly tool for making a sandwich composed of at least a bread component and sandwich garnish, comprising: a member comprising two separate spaced apart cavities for holding sandwich garnish material to be applied to a bread component for a sandwich, each cavity having an opening located in substantially the same plane; and a quantity of sandwich garnish material contained and in contact with at least one of the cavities.

#3. 20060134271, 11/018295, filed December 21, 2004

first claim:

A method of making a sandwich composed of at least a bread component and sandwich garnish comprising: placing sandwich garnish material on a sandwich assembly tool, the sandwich assembly tool comprising a region for holding sandwich garnish material to be applied to a bread component of a sandwich, the member comprising at least one cavity; placing the bread component over and adjacent the cavity; and thereafter inverting the sandwich assembly tool and the bread component while the bread is adjacent and covering the cavity to cause the sandwich garnish to be deposited from the cavity to the bread component.

**On April 18, 2008, there was a non-final rejection in 11/018959:

Claims 1-20 were rejected under 112 P2

Claim 1 (among others) was rejected under 102(b) over US 5012971.

Curiously, there was separately a rejection over a design patent, D274693.

The examiner brought up MPEP 2111.02 on statements regarding purpose or intended use. Only if a structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.

Effective Sept. 1, [2008] Hinman will be responsible for leading the intellectualproperty strategy for the corporation, including both its Verizon Telecom andVerizon Wireless business groups.

Dick Lynch, Verizon's chief technology officer, said, "Intellectual propertyhas never been more important to the success of high-tech companies than it istoday. Verizon is fortunate to have a significant and growing portfolio ofvaluable IPR [intellectual property rights]. We believe that Brian brings theexpertise to maximize the impact of our IPR on Verizon's success."

Prior to joining Verizon, Hinman was chief executive officer of AlliedSecurity Trust (AST), a Poughkeepsie, N.Y.-based trust formed by severalhigh-technology companies to obtain cost-effective patent licenses [!]. He wasCEO during the startup phase of the trust, formed in 2007, and before that hespent more than 20 years in senior executive positions in the field ofintellectual property at large operating companies, including IBM andWestinghouse.

Hinman holds Bachelor of Science degrees in business, marketing and economicsfrom University of Pittsburgh and an MBA from Rensselaer PolytechnicInstitute.

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.